[Federal Register Volume 61, Number 201 (Wednesday, October 16, 1996)]
[Rules and Regulations]
[Pages 54044-54060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26535]



[[Page 54043]]


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Part VII





Department of the Interior





_______________________________________________________________________



Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants: Establishment of a 
Nonessential Experimental Population of California Condors in Northern 
Arizona; Final Rule

  Federal Register / Vol. 61, No. 201 / Wednesday, October 16, 1996 / 
Rules and Regulations  

[[Page 54044]]



DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD62


Endangered and Threatened Wildlife and Plants: Establishment of a 
Nonessential Experimental Population of California Condors in Northern 
Arizona

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Fish and Wildlife Service (Service), in cooperation 
with the Arizona Game and Fish Department, and the U.S. Bureau of Land 
Management, plans to reintroduce California condors (Gymnogyps 
californianus) into northern Arizona/southern Utah and to designate 
these birds as a nonessential experimental population under the 
Endangered Species Act. This reintroduction will achieve a primary 
recovery goal for this endangered species, the establishment of a 
second non-captive population, spatially disjunct from the non-captive 
population in southern California. This California condor 
reintroduction does not conflict with existing or anticipated Federal 
or State agency actions or current and future land, water, or air uses 
on public or private lands.

EFFECTIVE DATE: This rule becomes effective on October 16, 1996.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the 
following Service offices:

--Field Supervisor, U.S. Fish and Wildlife Service, Ecological 
Services, Arizona Field Office, 2321 W. Royal Palm Road, Suite 103, 
Phoenix, Arizona 85021; Telephone: (602) 640-2720; Facsimile: (602) 
640-2730.
--Field Supervisor, U.S. Fish and Wildlife Service, Ecological 
Services, Ventura Field Office, 2493 Portola Road, Suite B, Ventura, 
California 93003; Telephone: (805) 644-1766; Facsimile: (805) 644-3958.

FOR FURTHER INFORMATION CONTACT:   Mr. Bruce Palmer (602/640-2720) at 
the Arizona Field Office address or Robert Mesta (805/644-1766) at the 
Ventura Field Office address above.

SUPPLEMENTARY INFORMATION:

Background

1. Legislative

    Section 10(j) of the Endangered Species Act of 1973, as amended 
(Act) enables the Service to designate certain populations of federally 
listed species that are released into the wild as ``experimental.'' The 
circumstances under which this designation can be applied are: (1) The 
population is geographically disjunct from nonexperimental populations 
of the same species (e.g., the population is reintroduced outside the 
species' current range but within its probable historic range); and (2) 
the Service determines the release will further the conservation of the 
species. This designation can increase the Service's flexibility to 
manage a reintroduced population, because under section 10(j) an 
experimental population is treated, in certain instances, as a 
threatened species regardless of its designation elsewhere in its 
range, and under section 4(d) of the Act, the Service has greater 
discretion in developing management programs for threatened species 
than it has for endangered species.
    Section 10(j) of the Act requires that when an experimental 
population is designated, the Service determine whether that population 
is either essential or nonessential to the continued existence of the 
species, based on the best available information. Nonessential 
experimental populations located outside National Wildlife Refuge 
System or National Park System lands are treated, for the purposes of 
section 7 of the Act, as if they are proposed for listing. Thus, for 
nonessential experimental populations, only two provisions of section 7 
would apply outside National Wildlife Refuge System and National Park 
System lands; section 7(a)(1), which requires all Federal agencies to 
use their authorities to conserve listed species, and section 7(a)(4), 
which requires Federal agencies to informally confer with the Service 
on actions that are likely to jeopardize the continued existence of a 
proposed species. Section 7(a)(2) of the Act, which requires Federal 
agencies to ensure that their activities are not likely to jeopardize 
the continued existence of a listed species, would not apply except on 
National Wildlife Refuge System and National Park System lands. 
Experimental populations determined to be ``essential'' to the survival 
of the species would remain subject to the consultation provisions of 
section 7 of the Act. Activities undertaken on private lands are not 
affected by section 7 of the Act unless the activities are authorized, 
funded, or carried out by a Federal agency.
    Section 9 of the Act prohibits the take of a listed species. 
``Take'' is defined by the Act as harass, harm, pursue, hunt, shoot, 
wound, trap, capture, or collect, or attempt to engage in any such 
conduct. However, in accordance with this special rule issued under 
section 10(j), throughout the entire California condor experimental 
population area, you will not be in violation of the Act if you 
unavoidably and unintentionally take (including killing or injuring) a 
California condor, provided such take is non-negligent and incidental 
to a lawful activity, such as hunting, driving, or recreational 
activities, and you report the take as soon as possible.
    Individual animals that comprise a designated experimental 
population may be removed from an existing source or donor population 
only after it has been determined that such a removal is not likely to 
jeopardize the continued existence of the species; the removal must be 
conducted under an existing permit issued in accordance with the 
requirements of 50 CFR 17.22. The Service evaluated this project under 
section 7 of the Act in a biological evaluation and concurrence 
memorandum dated August 19, 1996; the Service determined that the 
removal of birds from captive flocks and establishing a second wild 
flock would not jeopardize the continued existence of this species.

2. Biological

    The California Condor (Gymnogyps californianus) was listed as 
endangered on March 11, 1967, in a final rule published by the Service 
(32 FR 4001). The Service designated critical habitat for the 
California condor in California, on September 24, 1976 (41 FR 41914). 
Long recognized as a vanishing species (Cooper 1890, Koford 1953, 
Wilbur 1978), the California condor remains one of the world's rarest 
and most imperiled vertebrate species.
    The California condor is a member of the family Cathartidae, the 
New World vultures, a family of seven species, including the closely 
related Andean condor (Vultur gryphus) and the sympatric turkey vulture 
(Cathartes aura). California condors are among the largest flying birds 
in the world (U.S. Fish and Wildlife Service 1996). Adults weigh 
approximately 10 kilograms (22 pounds) and have a wing span up to 2.9 
meters (9\1/2\ feet (ft)). Adults are black except for prominent white 
underwing linings and edges of the upper secondary coverts. The head 
and neck are mostly naked, and the bare skin is gray, grading into 
various shades of yellow, red, and orange. Males and females cannot be 
distinguished by size or plumage characteristics. The heads of 
juveniles up to 3 years old are grayish-black, and their wing linings 
are

[[Page 54045]]

variously mottled or completely dark. During the third year the head 
develops yellow coloration, and the wing linings become gradually 
whiter (N.J. Schmitt in litt. 1995). By the time individuals are 5 or 6 
years of age, they are essentially indistinguishable from adults 
(Koford 1953, Wilbur 1975, Snyder et al. 1987), but full development of 
the adult wing patterns may not be completed until 7 or 8 years of age 
(N.J. Schmitt in litt. 1995).
    The fossil record of the genus Gymnogyps dates back about 100,000 
years to the Middle Pleistocene Epoch (Brodkorb 1964). Fossil records 
also reveal that the species once ranged over much of the southern 
United States, south to Nuevo Leon, Mexico, and east to Florida 
(Brodkorb 1964). Two well preserved fossil bones were reported from a 
site in upstate New York (Steadman and Miller 1987). Evidence indicates 
that California condors nested in west Texas, Arizona, and New Mexico 
during the Late Pleistocene. The disappearance of the California condor 
from much of this range occurred about 10,000-11,000 years ago, 
coinciding with the late Pleistocene extinction of the North American 
megafauna (Emslie 1987).
    By the time European man arrived in western North America, 
California condors occurred in a narrow Pacific coastal strip from 
British Columbia, Canada, to Baja California Norte, Mexico (Koford 
1953, Wilbur 1978). California condors were observed until the mid-
1800's in the northern portion of the Pacific Coast region (Columbia 
River Gorge) and until the early 1930's in the southern extreme, 
northern Baja California (Koford 1953, Wilbur 1973, Wilbur and Kiff 
1980). There is evidence indicating that condors returned to the 
southwest as early as the 1700's in response to the introduction of 
large herds of cattle, horses, and sheep that replaced the extinct 
Pleistocene megafauna as a source of carrion (Emslie 1986). By 1987, 
the California condor's range was reduced to a wishbone-shaped area 
encompassing six counties: Los Angeles, Ventura, Santa Barbara, San 
Luis Obispo, Monterey, and Kern, California (U.S. Fish and Wildlife 
Service 1996).
    Courtship and nest site selection occurs from December through the 
spring. Breeding California condors normally lay a single egg between 
late January and early April. The egg is incubated by both parents and 
hatches after approximately 56 days. Both parents share 
responsibilities for feeding the nestling. Feeding usually occurs daily 
for the first 2 months, then gradually diminishes in frequency. At 2 to 
3 months of age, condor chicks leave the nest cavity but remain in the 
vicinity of the nest where they are fed by their parents. The chick 
takes its first flight at about 6 to 7 months of age, but may not 
become fully independent of its parents until the following year. 
Parent birds occasionally continue to feed a fledgling even after it 
has begun to make longer flights to foraging grounds (U.S. Fish and 
Wildlife Service 1996).
    Because of the long period of parental care, it was formerly 
assumed that successful California condor pairs normally nested 
successfully every other year (Koford 1953). However, this pattern 
seems to vary, possibly depending mostly on the time of year that the 
nestling fledges. If a nestling fledges relatively early (in late 
summer or early fall), its parents may nest again in the following 
year, but late fledging probably inhibits nesting in the following year 
(Snyder and Snyder 1989).
    The only wild California condor (a male) of known age that bred 
successfully in the wild in 1986 was 6 years old. Recent data collected 
from captive birds, however, demonstrates that reproduction may occur, 
or at least be attempted, at earlier ages. A 4 year old male was the 
youngest condor observed in courtship display, and the same bird 
subsequently bred successfully at the age of 5 years (M. Wallace, Los 
Angeles Zoo, in litt. 1993). California condors nest in various types 
of rock formations including crevices, overhung ledges, potholes, and 
more rarely, in cavities of giant sequoia trees (Sequoia giganteus) 
(Snyder et al. 1986).
    California condors are opportunistic scavengers, feeding only on 
carcasses. Typical foraging behavior includes long-distance 
reconnaissance flights, lengthy circling flights over a carcass, and 
hours of waiting at a roost or on the ground near a carcass (U.S. Fish 
and Wildlife Service 1996). Condors may feed immediately, or wait 
passively as other California condors or golden eagles (Aquila 
chrysaetos) feed on the carcass (Wilbur 1978). Most California condor 
foraging occurs in open terrain. This ensures easy take-off and 
approach and makes food finding easier. Carcasses under brush are hard 
to see, and California condors apparently do not locate food by 
olfactory cues (Stager 1964). Condors maintain wide-ranging foraging 
patterns throughout the year, an important adaptation for a species 
that may be subjected to unpredictable food supplies (Meretsky and 
Snyder 1992).
    Prior to the arrival of European man, California condor food items 
within interior California probably included mule deer (Odocoileus 
hemionus), tule elk (Cervus elaogus nannoides), pronghorn antelope 
(Antilocapra americana), and smaller mammals. Along the Pacific shore 
the diet may have included whales, sea lions, and other marine species 
(Emslie 1987, U.S. Fish and Wildlife Service 1984). Koford (1953) 
listed observations of California condors feeding on 24 different 
mammalian species within the last two centuries. He estimated that 95 
percent of the diet consisted of the carcasses of cattle, domestic 
sheep, California ground squirrels (Spermophilus beechyi), mule deer, 
and horses. Although cattle may be the most available food within the 
range of the condor, deer appear to be preferred (Koford 1953, Wilbur 
1972, Meretsky and Snyder 1992). California condors appear to feed only 
1 to 3 days per week, but the frequency of adult feeding is variable 
and may show seasonal differences (U.S. Fish and Wildlife Service 
1996).
    Depending upon weather conditions and the hunger of the bird, a 
California condor may spend most of its time perched at a roost. 
California condors often use traditional roosting sites near important 
foraging grounds (U.S. Fish and Wildlife Service 1984). Although 
California condors usually remain at roosts until mid-morning, and 
generally return in mid- to late afternoon, it is not unusual for a 
bird to stay perched throughout the day. While at a roost, condors 
devote considerable time to preening and other maintenance activities. 
Roosts may also serve some social function, as it is common for two or 
more condors to roost together and to leave a roost together (U.S. Fish 
and Wildlife Service 1984). Cliffs and tall conifers, including dead 
snags, are generally used as roost sites in nesting areas. Although 
most roost sites are near nesting or foraging areas, scattered roost 
sites are located throughout the range. There may be adaptive as well 
as traditional reasons for California condors to continue to occupy a 
number of widely separated roosts, such as reducing food competition 
between breeding and non-breeding birds (U.S. Fish and Wildlife Service 
1984).
    Condor censusing efforts through the years have varied in intensity 
and accuracy. That has led to conflicting estimates of historical 
abundance, but all have indicated an ever-declining California condor 
population. Koford (1953) estimated a population of about 60 
individuals in the late 1930s through the mid-1940s, apparently based 
on flock size. A field study by Eben and Ian McMillan in the early 
1960s suggested a population of about 40 individuals,

[[Page 54046]]

again based in part on the validity of Koford's estimates of flock size 
(Miller et al. 1965). An annual October California condor survey was 
begun in 1965 (Mallette and Borneman 1966) and continued for 16 years. 
Its results supported an estimate of 50 to 60 California condors in the 
late 1960s (Sibley 1969, Mallette 1970). Wilbur (1980) continued the 
survey efforts into the 1970s and concurred with the interpretations of 
the earlier October surveys. He further estimated that by 1978 the 
population had dropped to 25 or 30 individuals.
    In 1981, the Service, in cooperation with California Polytechnic 
State University at San Luis Obispo, began census efforts based on 
individual identifications of birds through flight photography (Snyder 
and Johnson 1985). Minimum summer counts from these photo-censusing 
efforts showed a steady decline from an estimated minimum of 21 wild 
condors in 1982, 19 individuals in 1983, 15 individuals in 1984, and 9 
individuals in 1985. Although the overall condor population increased 
slightly after 1982 as a result of establishing a captive flock and 
double clutching in the wild, and the establishment of a captive flock, 
the wild population continued to decline. By the end of 1986, all but 
two California condors were captured for safe keeping and genetic 
security (U.S. Fish and Wildlife Service 1996).
    On April 19, 1987, the last wild condor was captured and taken to 
the San Diego Wild Animal Park (SDWAP). Beginning with the first 
successful captive breeding of California condors in 1988, the total 
population has increased annually and now stands at 121 individuals, 
including 104 in the captive flock and 17 in the wild (U.S. Fish and 
Wildlife Service 1996).
    Causes of the California condor population decline have probably 
been numerous and variable through time (U.S. Fish and Wildlife Service 
1984). However, despite decades of research, it is not known with 
certainty which mortality factors have been dominant in the overall 
decline of the species. Relatively few dead condors have been found, 
and definitive conclusions on the causes of death were made in only a 
small portion of these cases (Miller et al. 1965, Wilbur 1978, Snyder 
and Snyder 1989). Poisoning, shooting, egg and specimen collecting, 
collisions with man-made structures, and loss of habitat have 
contributed to the decline of the species (U.S. Fish and Wildlife 
Service 1984).

3. Recovery Efforts

    The primary recovery objective as stated in the California Condor 
Recovery Plan (Plan) (U.S. Fish and Wildlife Service 1996), is to 
reclassify the condor from endangered to threatened status. The minimum 
criterion for reclassification to threatened is the maintenance of at 
least two non-captive populations and one captive population. These 
three populations must: (1) Each number at least 150 individuals, (2) 
each contain at least 15 breeding pairs, and (3) be reproductively 
self-sustaining and have a positive rate of population growth. The non-
captive populations also must (4) be spatially disjunct and non-
interacting, and (5) contain individuals descended from each of the 14 
founders. When these five conditions are met, the species should be 
considered for reclassification to threatened status. The 
reclassification to threatened status will only apply to those 
populations (California) that are listed as endangered. The status of 
the established nonessential experimental population in northern 
Arizona/southern Utah will not change if the species is downlisted to 
threatened.
    The recovery strategy to meet this goal is focused on increasing 
reproduction in captivity to provide condors for release, and the 
release of condors to the wild. (U.S. Fish and Wildlife Service 1996).
    a. Captive Breeding: The years 1983 and 1984 were critical in 
formation of the captive California condor flock at the SDWAP and Los 
Angeles Zoo (LAZ). In 1983, two chicks and four eggs were brought in 
from the wild. The chicks went to the LAZ, and the eggs were hatched 
successfully at the San Diego Zoo (SDZ). Three of the chicks were taken 
to the SDWAP and one to the LAZ to be reared. In 1984, one chick and 
eight eggs were taken from the wild. The chick went to the LAZ and six 
of the eight eggs were successfully hatched at SDZ. Five of the chicks 
went to the LAZ and one went to the SDWAP to be reared. In 1985, two 
eggs were taken from the wild and hatched successfully, one at the SDZ 
and the other at the SDWAP. Both of these chicks were taken to the LAZ 
to be reared. In 1986, the last egg was brought in from the wild and 
hatched at the SDWAP, where it was kept for rearing. By 1986, only one 
pair of condors existed in the wild and the last free-flying condor was 
captured on April 19, 1987, bringing the captive population to 27. The 
first successful breeding in captivity occurred in 1988, when a chick 
was produced at the SDWAP by a pair of wild-caught condors. Four more 
chicks were produced in 1989. The number of chicks produced by captive 
condors continues to increase annually and the captive population has 
grown from the original 27 in 1987 to 104 in 1996. In 1993, the captive 
breeding program was expanded to include a facility at The Peregrine 
Fund's World Center for Birds of Prey (WCBP) in Boise, Idaho (U.S. Fish 
and Wildlife Service 1996).
    b. Releases: In October 1986, the California Condor Recovery Team 
(Team) recommended that criteria be satisfied before a release of 
captive-bred California condors could take place. These included having 
three actively breeding pairs of condors, three chicks behaviorally 
suitable for release, and retaining at least five offspring from each 
breeding pair contributing to the release. The Team added a provision 
to the third criterion to retain a minimum of seven progeny in 
captivity for founders that were not reproductively active (U.S. Fish 
and Wildlife Service 1996).
    The 1991 breeding season produced two condor chicks that met the 
Team's criteria for release, a male from the SDWAP and a female from 
the LAZ. However, attempting to apply the Team's third criterion to the 
1991 chicks also revealed that it would not be practical in the future, 
because several founders had died without producing five progeny. The 
Team, therefore, recommended choosing genetically appropriate chicks 
for future releases based on pedigree analyses developed for genetic 
management of captive populations (U.S. Fish and Wildlife Service 
1996).
    Prior to capture of the last wild California condor in 1987, the 
Team recognized that anticipated future releases of captive-reared 
condors would pose the problem of reintroducing individuals of an 
altricial (helpless at birth) bird into habitat devoid of their parents 
and other members of their own species. Thus, the Team recommended 
initiation of an experimental release of Andean condors. Research 
objectives for the experimental release were to refine condor release 
and recapture techniques; test the criteria being used to select condor 
release sites; develop written protocols for releases, monitoring, and 
recapture of condors; field test rearing protocols being used, or 
proposed for use to produce condors suitable for release; evaluate 
radiotelemetry packages; supplemental feeding strategies; train a team 
of biologists for releasing condors; and identify potential problems 
peculiar to the California environment. The Andean condor experiment 
began in August 1988 and concluded in December 1991.

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During that period, three release sites where tested and a total of 13 
female Andean condors were released. Only one mortality occurred in the 
field when an Andean condor collided with a power line (U.S. Fish and 
Wildlife Service 1996).
    In 1991, a pair of California condor chicks were released into 
Sespe Condor Sanctuary, Los Padres National Forest, Ventura County, on 
January 14, 1992. The male died from ingesting ethylene glycol 
(antifreeze) in October of the same year. The next release of 
California condors occurred on December 1, 1992, when six more captive-
produced California condors chicks were released at the same Sespe 
Condor Sanctuary site. Socialization with the remaining female from the 
first release proceeded well, and the ``flock'' appeared to adjust well 
to the wild conditions. However, there was continuing concern over the 
tendency of the birds to frequent zones of heavy human activity. 
Indeed, three of these birds eventually died from collisions with power 
lines between late May and October 1993 (U.S. Fish and Wildlife Service 
1996).
    Because of the tendency for the remaining condors to be attracted 
to the vicinity of human activity and man-made obstacles, especially 
power lines, another California condor release site was constructed in 
a more remote area, Lion Canyon, in the Los Padres National Forest near 
the boundary of the San Rafael Wilderness Area in Santa Barbara County. 
Five hatch-year condors were released at the new site on December 8, 
1993. In addition, the four condors that had been residing in the Sespe 
area were moved to the new site. They were re-released over a period of 
several weeks in hopes that this approach would reduce the probability 
that they would return to the Sespe area. Nevertheless, three of these 
condors eventually moved back to the Sespe area in March 1994, where 
they resumed the high risk practice of perching on power poles. Because 
of general concern about the tameness of these birds and the 
possibility that their undesirable behavior would be mimicked by 
younger California condors, these condors were retrapped on March 29, 
1994, and added to the captive breeding population. On June 24, 1994, 
one of the 1993 California condors died when it collided with a power 
line. A second condor that was in the company of this condor at the 
time of its death, was trapped and returned to the LAZ. The three 
remaining wild condors continued to frequent areas of human activity 
and were trapped and returned to the LAZ (Fish and Wildlife Service 
1996).
    As a result of the deaths due to collisions with power lines and 
the attraction of newly released young condors to humans and their 
activities, the 14 young California condors scheduled for release in 
1995 were subjected to aversion training at the LAZ. An electrified 
mock power pole and natural snag perches were constructed in a large 
flight pen holding the release candidates. When the young condors 
landed on the electrified pole they were given negative reinforcement 
in the form of a mild shock. When they landed on the natural snag 
perches they received no shock. After only a few attempts at landing on 
the electrified power pole and receiving a mild shock, they all avoided 
the power pole and used the natural perches exclusively (M. Wallace, 
Los Angeles Zoo, in litt. 1995).
    This group of California condors was also subjected to a series of 
human aversion exercises. Aversion maneuvers were staged in which a 
person would appear in view of a group of condors at a distance of 
approximately 100 meters (300 yds). Once it was determined that the 
condors spotted the person, the condors would be ambushed and captured 
by a hidden group of biologists. These condors were then placed in sky 
kennels, and later released after nightfall (M. Wallace, The Los 
Angeles Zoo, in litt. 1995). The goals of this exercise were to 
condition the condors to associate this negative experience with humans 
and increase the distance in which they would flush in future 
encounters with humans.
    On February 8, 1995, six of the trained condors were released at 
Lion Canyon. On August 29, the remaining eight California condors of 
this group were released at the Lion Canyon Site. The 1995 release 
candidates were split into two groups in order to keep the releases at 
more manageable numbers. To date none of these condors have attempted 
to land on a power pole and, although they have roosted near 
campgrounds, they have not approached humans. The one exception was a 
young condor of this group that was lured into a campground by campers 
that placed food and water out for it. This condor was subsequently 
trapped and brought into the LAZ. The remaining 13 continue to avoid 
both power poles and human activities.
    On March 1, 1995, the three condors remaining in the wild from the 
December 8, 1993, release were trapped and brought into captivity. This 
was done so they would not negatively influence the newly released 
birds that underwent the aversion training.
    The 1995 breeding season produced 13 condors eligible for release, 
4 of which were parent hatched and reared. At approximately 3 months of 
age the four parent hatched and reared condors were transferred to a 
newly constructed rearing facility at the Hopper Mt. National Wildlife 
Refuge System. This group was released to the wild on February 13, 
1996, at the Castle Crags release site located approximately 64 km (40 
mi) northwest of Lion Canyon on the western border of San Luis Obispo 
County. An objective of this release is to try and determine if parent 
hatched and reared chicks taken from LAZ at the earliest possible date 
and placed in a natural environment to be reared will be more 
successful in their adjustment to the wild. There are now 17 condors 
flying free in southern California and all have undergone aversion 
training. Of 14 release candidates produced in the spring of 1996, 6 
parent-reared birds are being held for release at the Vermilion Cliffs 
in northern Arizona.

4. Reintroduction Sites

    To satisfy the objectives of the Plan, at least one subpopulation 
of non-captive California condors must be established in an area 
disjunct from the subpopulation already being reestablished in the 
recent historical range in California. Following a widely publicized 
solicitation for suggestions for suitable condor release sites outside 
of California, the Team recommended in December 1991 that California 
condor releases be conducted in northern Arizona. Because this area 
once supported California condors, still provides a high level of 
remoteness, ridges and cliffs for soaring, and caves for nesting, the 
probability of a successful reintroduction is very good. The Service 
endorsed this recommendation on April 2, 1992. In collaboration with 
the Federal initiative to designate a release site in Arizona, the 
Arizona Game and Fish Department began evaluating a possible California 
condor reintroduction in 1989. The Arizona Game and Fish Department 
determined the reestablishment as appropriate and feasible in steps 1 
and 2 of the Department's ``Procedures for Nongame Wildlife and 
Endangered Species Re-establishment Projects,'' a 12-step process 
specifying the protocol for a nongame reintroduction to take place 
(U.S. Fish and Wildlife Service 1995b).
    a. Site Selection Process: Potential release sites in northern 
Arizona were evaluated through aerial reconnaissance, site visits, and 
discussions with agency personnel familiar with the areas. This 
evaluation process resulted in selection of four potential release 
sites. As required by

[[Page 54048]]

the National Environmental Policy Act of 1969 (NEPA), the Service, in 
cooperation with the Arizona Game and Fish Department and the Bureau of 
Land Management, produced an Environmental Assessment titled 
``Experimental Release of California Condors at the Vermilion Cliffs 
(Coconino County, Arizona)'' in which the potential release sites and 
adjacent lands (for population expansion) were thoroughly examined and 
objectively evaluated. The NEPA process resulted in selection of a 
preferred release site at the Vermilion Cliffs located on Bureau of 
Land Management lands (U.S. Fish and Wildlife Service 1995b).
    The suitability of the Vermilion Cliffs as a California condor 
release site was further evaluated using the Service's ``The Condor 
Release Site Evaluation System.'' This system uses 25 working criteria 
divided into three priority classes: Priority 1 includes features 
critical to releasing and establishing condors in the wild; priority 2 
includes features that are necessary but not critical; and priority 3 
includes features that would add or detract from suitability but are 
not critical. The working criteria are grouped into working factors 
that include site suitability, logistics, man-made threats/hazards, and 
suitability of adjacent lands (for population expansion). Each working 
criterion is assigned a quantitative value and weighted according to 
assigned priority criteria. The sum from the three priority classes 
gives the total value for a site. This rating system verified the 
Vermilion Cliffs (the preferred alternative) as a suitable release site 
(U.S. Fish and Wildlife Service 1995b).
    b. Vermilion Cliffs Release Site: The Vermilion Cliffs release site 
is on the southwestern corner of the Paria Plateau approximately 100 
meters from the edge of the Vermilion Cliffs, Coconino County, Arizona. 
The Paria Plateau is characterized by relatively flat, undulating 
topography dominated by pinyon-juniper/blue grama grass (Pinus edulis-
Juniperus osteosperma/Bouteloua gracilis) communities and mixed shrub 
communities dominated by sagebrush (Artemesia spp.) on sandy upland 
soils. To the south and east of the Plateau lies the steep precipice of 
the Vermilion Cliffs, rising over 1,000 feet from the floor of House 
Rock Valley. Uplifting and differential erosion has created complex 
geologic structures and a diverse variety of habitats in a small 
geographic area. The cliffs are sharply dissected by canyons and 
arroyos and the lower slopes are littered with enormous boulders. 
Numerous springs emerge from the sides of the cliffs (U.S. Bureau of 
Land Management and Arizona Game and Fish Department 1983).

5. Reintroduction Protocol

    In general, the reintroduction protocol will involve an annual 
release of captive-reared California condors until recovery goals, as 
outlined in the Plan, are achieved (U.S. Fish and Wildlife Service 
1995b). These reintroduction protocols were developed and tested in the 
current southern California condor release project.
    a. Condor Release: The reintroduction project is designed to 
release a group of captive-reared California condors once each year. 
Condors may be moved to the release site in the fall of 1996 and 
released in late 1996. Three captive breeding facilities (LAZ, SDWAP, 
and WCBP), are producing condors for release to the wild. The size of 
each release group will depend on the number of hatch-year condors 
produced during the late winter to early spring of that year, but 
releases will likely involve up to 10 hatch-year condors. These condors 
will be hatched in captivity and raised by a condor look-alike hand 
puppet, or by their parents, until they are approximately 4 months of 
age. They will then be placed together in a single large pen so they 
will form social bonds. At approximately 6 months of age they will be 
moved to a large flight pen and undergo aversion training to humans and 
power poles for 1 to 2 months. After the training has been completed 
the young condors will be transported by helicopter to the release site 
at the Vermilion Cliffs (U.S. Fish and Wildlife Service 1995b).
    At the release site they will be placed in a temporary release pen 
and, depending on the age of the birds, will remain there for an 
acclimation period of approximately 1 week to 3 months, depending upon 
the age of the condors and other factors. This structure will be 
approximately 16 ft by 8 ft and 6 ft high. Netting will cover the front 
of the pen, allowing the young condors to view and become accustomed to 
the surrounding area. The release pen will be pre-fabricated, delivered 
to the release site by vehicle or helicopter, and removed from the site 
after the young condors have fledged (U.S. Fish and Wildlife Service 
1995b).
    Meanwhile, biologists will remain near the release pen 24 hours a 
day observing the young condor's behavior and guarding against 
predators or other disturbance. After the initial adjustment period and 
when all the young condors can fly, the release will take place. Any 
release candidate showing signs of physical or behavioral problems will 
not be released. Release is accomplished by removing the net at the 
front of the pen allowing the birds to exit. The young condors will 
likely remain in the immediate area of the pen for some time before 
beginning exploratory forays along the cliffs. A small area of 
approximately 10 acres of BLM land will be posted temporarily closed to 
recreational activity to protect the newly released condors and will 
remain closed until they have dispersed from the release area (U.S. 
Fish and Wildlife Service 1995b).
    b. Supplemental Feeding: Condors are dependent on carrion and must 
be fed until they learn to locate carcasses independently. Newly 
released young condors will be dependent on carrion provided by 
biologists, making it necessary to maintain a supplemental feeding 
program. However, older condors (sub-adults and adults), will probably 
be locating carcasses on their own and would not be dependent on the 
supplemental feeding program for their survival. Supplemental feeding 
should reduce the likelihood of deaths of young condors from accidental 
poisoning insofar as it prevents them from feeding on contaminated 
carcasses. The diet provided to the condors will consist primarily of 
livestock carcasses and road-killed animals. Field biologists will 
deliver carcasses to the condors every 4 to 5 days by carrying 
carcasses to the edge of the cliffs at night, to avoid detection by the 
condors. A network of feeding stations on prominent points with high 
visibility will be identified in the general area of the release. 
Carcasses will be placed on the ground or, if predators become a 
problem, placed off the ground atop natural rock outcrops less 
accessible to ground predators (U.S. Fish and Wildlife Service 1995b).
    c. Monitoring: All California condors released to the wild will be 
equipped with two radio transmitters: one on each patagium (the fold of 
skin in front of the main segments of a bird's wing); or one patagial 
placement, and one mounted on the tail. In addition, they will wear 
bold colored patagial markers on each wing with code numbers to 
facilitate visual identification. The movements and behavior of each 
condor will be monitored for at least the first 2 to 3 years of its 
life. Ground triangulation will be the primary means of radio tracking. 
Aerial tracking will be used to find lost birds or when more accurate 
locations are desired.
    Telemetry flights will be coordinated with the appropriate land 
management agencies (U.S. Fish and Wildlife Service 1995b).

[[Page 54049]]

Status of Reintroduced Population

    In accordance with section 10(j) of the Act, California condors 
reintroduced into northern Arizona will be designated as a nonessential 
experimental population for the following reasons: the principal 
population exists in the safe environment of three captive breeding 
facilities; the existing wild population in southern California will 
not be adversely affected by this reintroduction; and establishing a 
second wild population will further enhance the recovery of this 
species. The conditions under which a population can be designated as 
experimental are: the population must be geographically disjunct from 
any other wild populations of the same species, and the Service 
determines that the release will further the conservation and recovery 
of the species.
    Section 10(j) is designed to increase the Service's flexibility to 
manage an experimental population by treating it as a threatened 
species regardless of its designation in other parts of its range. This 
is because section 4(d) of the Act gives the Service greater 
flexibility in the development and implementation of regulations to 
manage threaten species than it does for endangered species. This 
flexibility allows the Service to manage the experimental population in 
a manner that will ensure that current and future land, water or air 
uses and activities should not be restricted and the population can be 
managed for recovery purposes.
    Before an experimental population can be released, section 10(j) 
requires that a determination be made by the Service whether the 
population is either ``essential'' or ``nonessential'' to the continued 
existence of the species. An experimental population determined to be 
essential is treated as a threatened species. An experimental 
population determined to be nonessential is treated as a species 
proposed for listing as threatened. The exception is a nonessential 
population located within the National Park System or National Wildlife 
Refuge System lands will be treated as a threatened species for 
purposes of section 7(a)(2) of the Act. If those same condors leave the 
National Park System or National Wildlife Refuge System, they will be 
considered as a species proposed for listing.
    Section 7(a)(2) of the Act prohibits Federal agencies from 
authorizing, funding, or carrying out any activity that would likely 
jeopardize the continued existence of a listed species or adversely 
modify their critical habitats. All Federal agencies must consult with 
the Service to insure that any activity that is authorized, funded, or 
carried out by such agency is not likely to jeopardize the continued 
existence of a listed species. A nonessential experimental population 
is treated as a threatened species on National Park System and National 
Wildlife Refuge System lands, and would be subject to the consultation 
requirements of section 7(a)(2) on those lands. In addition, on all 
other lands, two provisions of section 7 apply to nonessential 
experimental populations; section 7(a)(1), which requires all Federal 
agencies to use their authorities to conserve listed species, and 
section 7(a)(4), which requires Federal agencies to informally confer 
with the Service on actions that are likely to jeopardize the continued 
existence of a proposed species.
    Currently, the captive California condor population (104 
individuals) exists in the safe environment of three captive breeding 
facilities located at the SDWAP, LAZ, and WCBP. The captive breeding 
facilities are not included in exhibits, are closed to the public and 
are under 24 hour surveillance by condor keepers or video cameras. Only 
essential program personnel are granted access to the captive 
population. The captive population is given excellent care and since 
1982 there have been no deaths of adults or sub-adults. In addition, 
the geographic separation of the three breeding facilities protects 
these subpopulations from the threat of extinction due to a single 
catastrophic event.
    The reproductive rate of the captive population dramatically 
exceeds the mortality rate of the wild population. All condors lost in 
the reintroduction efforts can be replaced by current chick production, 
while the captive population continues to increase. The wild population 
will not be adversely affected by the reintroduction since it is 
hundreds of miles away (see below).
    By mid-1987, every surviving individual of the species was held in 
captivity following agreement that the decline of the wild population 
to eight surviving adults had demonstrated that the wild population was 
destined for likely extinction (Geyer et al. 1993). Genetic management, 
which includes control of all matings, has maximized the potential 
genetic viability of the wild captive population. No California condor 
hatched in captivity is considered for release to the wild unless its 
founder line is well-represented in the captive population. All release 
candidates are genetically redundant and their loss will not jeopardize 
the diversity of the existing condor gene pool.
    The reintroduction project will further the conservation and 
recovery of the species by establishing a second wild population, 
ensuring the existence of a wild population if a catastrophic event 
eliminates the southern California population, enhancing the 
opportunity to manage the genetic diversity of the wild population, and 
avoiding the potential risks inherent in overcrowding the captive 
population.

Location of Reintroduced Population

    Under section 10(j)(1) of the Act, an experimental population must 
be geographically separate from nonexperimental populations of the same 
species. The last recorded sighting of a California condor in the 
experimental population area occurred in 1924, when Edouard Jacot 
observed a condor feeding on a carcass with golden eagles near the town 
of Williams, Arizona (Rea 1983). Condor researchers are confident that 
there are no undocumented wild condors in the release area or anywhere 
else in their historic range outside of California. Currently, 17 
endangered California condors are located in the wild back country of 
Santa Barbara County, California. This non-captive population is 
located approximately 720 kilometers (km) (450 miles (mi)) west of the 
release site, and 480 km (300 mi) west of the western boundary of the 
reintroduction area. The longest distance covered by one of these 
recently reintroduced condors has been approximately 240 km (150 mi) 
over a period of 1 week, with typical daily flights from 8 km (5 mi) to 
16 km (10 mi). According to Meretsky and Snyder (1992) the foraging 
flights by breeding California condors in the 1980's were from 70 km 
(44 mi) to 180 km (112 mi). Based on this information, the Service does 
not expect any immigration/emigration between the extant non-captive 
and the nonessential experimental populations.
    The California condor reintroduction site in northern Arizona is 
located on the Vermilion Cliffs, in the southwestern corner of the 
Paria Plateau. However, the designated nonessential experimental 
population area will be larger and include portions of three states, 
Arizona, Nevada, and Utah. The southern boundary is Interstate Highway 
40 in Arizona from its junction with Highway 191 west across Arizona to 
Kingman; the western boundary starts at Kingman, goes northwest on 
Highway 93 to Interstate Highway 15, continues northeasterly on 
Interstate Highway 15 in Nevada and Utah, to Interstate Highway 70 in 
Utah; where the northern boundary starts and goes across Utah to 
Highway 191; where

[[Page 54050]]

the eastern boundary starts and goes south through Utah until Highway 
191 meets Interstate Highway 40 in Arizona (See map at end of this 
rule). The Service has designated this experimental population area to 
accommodate any potential future movements by condors and to include 
wild canyon habitat that stretches from the eastern Utah southwest 
through Arizona to the eastern border of Nevada that will provide this 
population of condors with a natural refugium in which to raise future 
generations of condors. In the experimental population area, condors 
will maintain the status of nonessential experimental. Any condors that 
leave the experimental population area will be considered as 
endangered. However, this special rule includes provisions for the 
capture and return of condors to the experimental population area 
should the birds stray out of the experimental population area.

Management

    Service regulations require that, to the extent practicable, a 
regulation promulgated under section 10(j) of the Act, represent an 
agreement between the Service, the affected State and Federal agencies, 
and persons holding any interest in land that may be affected by the 
establishment of the experimental population (see 50 CFR Sec. 17.81 
(d)). The Vermilion Cliffs reintroduction project will be undertaken by 
the Service and its primary cooperators, the Arizona Game and Fish 
Department and the Bureau of Land Management. Other cooperators that 
will provide support on an as-needed basis include: Utah State 
Department of Natural Resources, Grand Canyon National Park, Glen 
Canyon National Recreation Area, Kaibab National Forest, the Hualapai 
Tribe, the Navajo Nation, Los Angeles Zoo, Zoological Society of San 
Diego (the Zoological Society includes the SDWAP and SDZ), The Phoenix 
Zoo, and The Peregrine Fund. This nonessential experimental population 
will be managed in accordance with the provisions of a Memorandum of 
Understanding (MOU) among the cooperators (noted above), an Agreement 
between the Service and a coalition of county and local governments 
(Coalition) in the California condor experimental population area, and 
this final rule. At this time, the MOU and Agreement are in final form, 
and will be signed soon after publication of this rule. A separate 
agreement between the Service and the State of Utah is under 
development. This rule to the maximum extent practicable represents an 
agreement between the Service, the affected state and Federal agencies 
and persons holding an interest in land which may be affected by the 
establishment of this experimental population. The purpose of the MOU 
is to establish a general framework for cooperation and participation 
among the cooperators to establish a long-term program to release 
captive reared California condors and achieve the recovery goals for 
this species as cited in the California Condor Recovery Plan (U.S. Fish 
and Wildlife Service 1996). In order to accomplish these goals each 
cooperator will designate a principal contact to interface with the 
field program and participate on a working team to develop annual work 
plans, provide facilities, equipment, logistical support, and land 
access, as needed and when available, to the field program and provide 
ongoing review of and feedback on the progress of the reintroduction 
program. The purposes of the Agreement are to ensure to the maximum 
extent practicable that current and future land, water, or air uses 
within the experimental population area are not affected as a 
consequence of the release of California condors in northern Arizona/
southern Utah, and to promote the recovery of the California condor. 
This will be accomplished through annual coordination meetings with 
local governments and communities to review the status of the 
reintroduction effort.
    The reintroduction area consists of remote Federal or Native 
American Reservation lands with limited private lands. The management 
scheme for these lands (e.g., BLM, Kaibab National Forest, Grand Canyon 
National Park, Glen Canyon National Recreation Area, and Navajo Indian 
Reservation) is consistent with the reintroduction of condors into this 
area. Furthermore, the designation of this population as nonessential 
experimental will encourage local cooperation as a result of the 
management flexibility allowed under this designation. The Service 
considers the nonessential experimental population designation, MOU, 
Agreement, and associated reintroduction plan (an appendix to the 
Environmental Assessment) necessary to receive cooperation of the 
affected landowners, agencies, and recreational interests in the 
experimental population area.
    A designation of nonessential experimental limits the application 
of section 7(a)(2) of the Act. For the purposes of section 7, the 
nonessential experimental population is treated as a proposed species 
except on National Wildlife Refuge System and National Park System 
lands. Current and future land, water, or air uses such as, but not 
limited to: commercial and business development; forest management; 
agriculture; mining and energy resource exploration and development 
(e.g. coal); livestock grazing; development of transportation and 
utility corridors (e.g. power transmission lines); communication 
facilities; water development projects; sport hunting and fishing; air 
tour operations and outdoor recreational activities (e.g. jeep tours, 
hiking, biking, boating) should not be restricted due to the 
designation of the nonessential experimental population of California 
condors. In addition, no operational restrictions due to the presence 
or potential presence of California condors will be placed on currently 
permitted activities on Bureau of Land Management grazing allotments 
located in proximity to the release site at the Vermilion Cliffs. 
Further, if any modifications of existing structures are needed to 
protect condors they will be made or financed by the appropriate MOU 
cooperator with the approval of the land manager and/or private 
operator, in accordance with applicable procedures.
    The progress of the reintroduction project will receive an informal 
review on an annual basis and a formal evaluation by all cooperators 
and the Coalition within the first 5 years after the first release to 
evaluate the reintroduction project and determine future management 
needs. All reviews will include, but not be limited to: a review of 
management issues; compliance with agreements; assessment of available 
carrion; dependence of older condors on supplemental food sources; post 
release behavior; causes and rates of mortality; alternative release 
sites; project costs; and public acceptance. Once recovery goals are 
met for downlisting the species, and tasks in the recovery plan are 
accomplished, a proposed rule to reclassify the species from endangered 
to threatened would be developed. The Service has determined that the 
establishment of this nonessential experimental population will further 
the conservation and recovery of the California condor. The number of 
variables that could affect this reintroduction project make it 
difficult to develop criteria for success or failure after 5 years. 
However, if after 5 years the condor population is experiencing a 40 
percent or greater mortality rate or released condors are not finding 
food on their own, serious consideration will be given to terminating 
the project.

[[Page 54051]]

Summary of Comments and Recommendations

    On November 13, 1990, the Service conducted its first public 
meeting to discuss the feasibility of reintroducing California condors 
in the Grand Canyon area, the Grand Canyon National Park hosted the 
meeting. Represented at the meeting were Federal, State, and Tribal 
agencies, local industries, conservation organizations, and interested 
private citizens. After this meeting and before the National 
Environmental Policy Act (NEPA) process was initiated in May 1995, 
approximately 16 scoping/reconnaissance meetings on the reintroduction 
were held with interested Federal, State, and Tribal agencies. On May 
15, 1995, a NEPA scoping letter was sent out to approximately 200 
Federal and State agencies, tribal, county, and city governments, 
private industries, conservation groups, and other interested parties. 
It announced the Service's intent to prepare an Environmental 
Assessment on a proposal to establish a long term project to 
reintroduce California condors into northern Arizona and requested 
comments on the proposal. On August 14, 1995, the Service mailed out 
approximately 300 copies of the draft Environmental Assessment for the 
``Experimental Release of California Condors at the Vermilion Cliffs, 
Coconino County, Arizona'' for review and comment. On February 29, 
1996, the Service completed a Finding of No Significant Impact (FONSI) 
for the reintroduction project. A revised version of the FONSI was 
signed on September 23, 1996. The Service mailed out approximately 300 
letters announcing that the FONSI and the final Environmental 
Assessment were available upon request. The revised FONSI is also 
available to the public (see ADDRESSES section). The development of 
this NEPA document included a combination of 16 meetings and 
presentations to explain the proposal and accept comments.
    On January 2, 1996, the Service published (61 FR 35) a proposed 
rule to establish a nonessential experimental population of California 
condors in northern Arizona/southern Utah with a comment period that 
closed on February 1, 1996. The proposed rule included the announcement 
of two public hearings, one in Flagstaff, Arizona, the other in Kanab, 
Utah. A legal notice, announcing the proposed rule, the two hearings, 
and inviting public comment was published in the Southern Utah News, 
The Richfield Reaper, The Times Independent, The Beaver Press, The San 
Juan Recorder, The Salt Lake Tribune, Desert News, The Spectrum, 
Arizona Daily Sun, Kingman Daily Miner, The Arizona Republic, The 
Phoenix Gazette, Williams Grand Canyon News, Holbrook Tribune News, Las 
Vegas Review Journal, and The Las Vegas Sun, between January 9 and 14, 
1996.
    On February 6, 1996, the Service published a notice in the Federal 
Register (61 FR 4394) reopening the comment period until February 29, 
1996, and on February 29, 1996, published a second notice (61 FR 7770) 
extending the comment period until April 1, 1996. The proposed rule and 
two comment extensions were announced in published legal notices, press 
releases, and a special mailing to interested parties. Pursuant to 50 
CFR 424.16(c)(2), the Service may extend or reopen a comment period 
upon finding that there is good cause to do so. Full participation of 
the affected public in the rulemaking process and allowing the Service 
to consider the best scientific and commercial data available in making 
a final determination on the proposed action, is deemed as sufficient 
cause. The extensions were made to address the comments and concerns of 
the communities located within the proposed experimental population 
area. During the extension period a series of eight meetings were 
conducted with State, County, and local governments and industry 
representatives located within the proposed experimental population 
area to address their specific concerns.
    Changes in the final rule as a result of public comments: Two 
paragraphs (10 and 11) have been added to the special rule based on 
public comments on the proposed rule. The Service also made minor 
wording changes to other paragraphs in the special rule to provide more 
clarity. These additions and minor modifications do not alter the 
predicted impact or effect of the final rule:
    1. Paragraph (1) has been amended to clearly indicate that this 
release will further the conservation of the California condor.
    2. The language describing allowable take has been clarified to 
indicate that throughout the entire California condor experimental 
population area, you will not be in violation of the Act if you 
unavoidably and unintentionally take (including killing or injuring) a 
California condor, provided such take is non-negligent and incidental 
to a lawful activity, such as hunting, driving, or recreational 
activities, and you report the take as soon as possible.
    3. According to paragraph 10 in the special rule, the status of the 
reintroduction project will receive an informal evaluation on an annual 
basis and a formal evaluation within the first 5 years after the 
initial release, and every 5 years thereafter. The evaluation will 
include, but not be limited to, a review of management issues, 
compliance with agreements, assessment of available carrion, dependence 
of older condors on supplemental food sources, post release behavior, 
causes and rates of mortality, alternative release sites, project 
costs, and public acceptance. Paragraph 10 in the special rule also 
includes conditions under which the Service would consider termination 
of the project. If after 5 years the project is experiencing a 40 
percent or greater mortality rate or released condors are not finding 
food on their own, serious considerations will be given to terminating 
the project.
    4. According to special rule paragraph 11, the Service does not 
intend to pursue a change in the nonessential experimental population 
designation to experimental essential, threatened, or endangered, or to 
modify the experimental population area boundaries without consulting 
with and obtaining the full cooperation of (1) affected parties located 
within the experimental population area, (2) the reintroduction program 
cooperators identified in the Memorandum of Understanding (MOU) for 
this program, and (3) the cooperators identified in the Agreement for 
this program. The Service does not intend to change the status of this 
nonessential population until the California condor is recovered and 
delisted in accordance with the Act or if this reintroduction is not 
successful and the rule is revoked. No designation of critical habitat 
will be made for nonessential populations (16 U.S.C. 
Sec. 1539(j)(2)(C)(ii)). If legal actions or other circumstances compel 
a change in this nonessential experimental population's legal status to 
essential, threatened, or endangered, or compel the Service to 
designate critical habitat for the California condors within the 
experimental population area defined in this rule, then, unless the 
parties to the MOU and Agreement existing at that time agree that the 
birds should remain in the wild, all California condors will be removed 
from such area and this experimental population rule will be revoked. 
Changes in the legal status and/or removal of this population of 
California condors will be made in compliance with any applicable 
Federal rulemaking and other procedures.
    To date, the Service has conducted a minimum of 59 meetings, which 
included 2 public hearings, published 42 legal notices in newspapers in 
Arizona, Utah, and Nevada, and

[[Page 54052]]

developed a mailing list approaching 400 in an attempt to inform all 
interested parties and address their concerns. A total of 206 written 
and 33 oral comments were received during the comment period. Analysis 
of the comments revealed 19 issues that are identified and discussed 
below.
    Issue 1: The goal of this reintroduction project needs to be 
clearly stated. Is it to establish a self-sustaining or artificially 
maintained population?
    Service Response: The goal of this reintroduction project is to 
establish a self-sustaining population of 150 individuals, with at 
least 15 breeding pairs. In order to accomplish this goal it will be 
necessary to provide supplemental food as long as young inexperienced 
condors are being released to the wild. In order for these condors to 
survive the transition from captivity to the wild they must be provided 
food until they learn to locate carcasses on their own. For condors 
this ability develops over an extended period of time; first they must 
build strength to sustain long foraging flights, then they must learn 
how to utilize local wind patterns, and finally become familiar with 
their new environment. This phase is prolonged because there are no 
adults to guide them through these steps. Over time these condors will 
attain the knowledge and skill to find carcasses on their own and will 
become independent of the supplemental food.
    Supplemental feeding is an integral component of proven avian 
release strategies. The successful recovery of the American peregrine 
falcon (peregrine) was due in part to the reintroduction programs that 
released young captive-reared peregrines into unoccupied habitats 
throughout most of its range in North America. When this release 
program began in 1974 they provided food to young captive-reared 
peregrines released to the wild. Today, 22 years later, food is still 
being provided to newly released captive-reared peregrines making the 
transition to the wild. The peregrine wild population is approaching 
1,300 pairs. The Service published a notice of intent to propose the 
peregrine for delisting on June 30, 1995 (60 FR 34406).
    Issue 2: The large number of road kills in Utah could result in 
condor mortalities, particularly along Highway 89 between Kanab and Big 
Water, which bisects a major migration route for the Paunsaugunt mule 
deer herd. Large numbers of deer are killed along this highway every 
year that could attract condors which could be injured or killed by 
highway traffic.
    Service Response: California condors have never been observed to 
come down to a highway to feed on road killed carrion (Jan Hamber, 
Santa Barbara Museum of Natural History, pers. comm. 1996). To ensure 
that condors released at the Vermilion Cliffs are not attracted to any 
road kill, the operational plan for this release requires that Highway 
89 and others in the area be monitored on a regular basis for road 
kills, particularly during the spring and fall mule deer migrations 
when the number of road kills is highest.
    All road kills will either be collected and stored in large 
freezers as a source of future food for condors or moved well off the 
highway so condors and other scavenging species can feed safely.
    Issue 3: Will the power lines located in the release area threaten 
this population?
    Service Response: Early in 1995, a program to teach condors to 
avoid power poles/lines was developed and initiated at the Los Angeles 
Zoo. Power pole aversion training was accomplished by constructing an 
electrified mock power pole in the large flight pen holding young 
condors scheduled for release to the wild. This pole was designed to 
give the condors that landed on it a mild but uncomfortable shock. 
Natural tree snags were also placed in the flight pen to reward the 
condors who perched on them with a positive experience, no shock. In 
less than 2 weeks the condors being trained attempted to land on the 
pole and received a mild shock. It only took one such experience to 
teach the condors to avoid the pole.
    The group of condors that underwent the power pole aversion 
training have been in the wild for over 1 year and have not been 
observed landing on power poles. Although only one power pole 
configuration was used, this group of condors has avoided all types of 
power poles. In order to ensure the success of this training method, 
mock electrified power poles will be erected near the release site, 
these poles will mimic the configurations in the area. This was done in 
southern California as a means of continuing the training in the field; 
however, this group of condors has yet to attempt to land on them.
    Issue 4: Reintroduction projects can be very expensive, how much is 
this costing the taxpayer?
    Service Response: The Service and its cooperators have entered into 
a partnership with The Peregrine Fund (Fund), a nonprofit conservation 
organization devoted to the conservation and study of raptors and other 
birds. The Service approached the Fund to participate in this 
reintroduction project because of their extensive experience and 
success in the captive breeding and releasing of endangered bird 
species throughout the world. The Fund will be managing the 
reintroduction project in the field under the direction of the Service 
and its cooperators. The Fund will also be raising the money to finance 
the reintroduction project at the Vermilion Cliffs. This extremely 
important recovery objective will take the condor a significant step 
closer to recovery, creates little if any landowner burden, and is 
undertaken with a partner so little cost is borne by the Service.
    Issue 5: How will the operation of the California condor 
reintroduction project at the Vermilion Cliffs affect hunting in the 
area?
    Service Response: Mule deer, desert bighorn sheep, bison, pronghorn 
antelope, coyotes, rabbits, and game birds are hunted in the area. The 
field operation of the reintroduction project will have no impact on 
these hunts. With the exception of a small [4 hectares (10 acres)] 
temporary closure at the release site while the condors are being held 
for release, no restrictions are being placed on public hunting 
opportunities or any other outdoor recreational activities. The issue 
of condor deaths attributed to lead poisoning resulting from hunting is 
addressed under Issue 11.
    Issue 6: California condors should not be released in northern 
Arizona because Gymnogyps californianus did not occur in northern 
Arizona prehistorically, the Pleistocene condor was actually G. amplus.
    Service Response: The California Condor was more widespread during 
the late Pleistocene epoch (Wetmore 1931a, 1931b, Brodkorb 1964, 
Lundelius et al. 1983, Steadman and Miller 1987). In the southwestern 
United States, condor fossils have been reported from at least 14 caves 
in the northern Arizona region (deSaussure 1956, Miller 1960, Parmalee 
1969, Mead and Phillips 1981, Rea and Hargrave 1984, Emslie 1987, 
1988), Nevada (Miller 1931, Howard 1952), New Mexico (Wetmore 1931a, 
1932, Howard and Miller 1933, Howard 1962a, 1971, Emslie 1987), and 
Texas (Wetmore and Friedmann 1933, Emslie 1987). The Arizona specimens 
are between 9,580-22,110 years before present, based on radiocarbon 
dating (Emslie 1987, 1990). The disappearance of the condor and other 
large scavenging birds from these regions coincided with the extinction 
of the Pleistocene mammalian megafauna, an event that may have been 
related to climatic changes (Mehringer 1967), to the effects of over 
hunting by aboriginal man

[[Page 54053]]

(Martin 1967), or to a combination of these factors.
    Most authors have arbitrarily assigned all Pleistocene Gymnogyps 
fossils to the form G. amplus, described from a large tarsometatarsus 
found in Pleistocene deposits in a northern California cave (Miller 
1911), on the recommendation of Fisher (1944, 1947). However, aside 
from their generally larger size and slight differences in skull 
structure (Fisher op cit., cf Emslie 1988), there appear to be no 
features that distinguish Pleistocene Gymnogyps fossils from the bones 
of modern condors. Furthermore, certain Pleistocene condor bones, 
including some from Arizona, have been as small as those of present day 
condors (Miller 1957, Parmalee 1969, Rea and Hargrave 1984).
    All avian paleontologists, including Miller (1957) (the original 
describer of G. amplus), Howard (1947, 1962b), Wetmore (1956, 1959), 
Brodkorb (1964) and Emslie (1987), who have considered the matter have 
remarked that ``amplus'' is merely a temporal subspecies of present day 
G. californianus and thus its progenitor. As a means of resolving 
nomenclatural ambiguity and to reflect the presumed relationships among 
condors old and new, Emslie (1988) recommended that the Pleistocene 
Gymnogyps fossils and present day California condors all be treated as 
representatives of the species G. californianus, restricting the 
trinomial G. californianus amplus for Pleistocene fossils and the name 
G.c. californianus for the modern birds.
    Issue 7: The proposed reintroduction location is not within the 
probable historic range of the California condor.
    Service Response: Although earlier authors, including Swarth 
(1914), Harris (1941), Koford (1953), and Wilbur (1978), did not accept 
historical records of California condors east of California, or 
regarded such reports as equivocal, several recent authorities have 
treated these records as authentic (Phillips et al. 1964, Rea 1981, 
Emslie 1986, 1987, Snyder and Snyder in press). Historical sightings of 
condors in Arizona mentioned by these authors include those of Coues 
(1866), F. Stephens (in Brewster 1882), Rhoads (1892), Brown (1899), 
Jacot (ms), and Mearns (ms). A purported sighting of a condor in Utah 
(Henshaw 1875) and other Utah reports (Hayward et al. 1976) seem to be 
less convincing.
    The California condor survived the late Pleistocene extinction by 
retreating to the coastal mountain ranges of the Pacific Ocean. There 
it was able to survive by supplementing its diet with fish and marine 
mammal carcasses that washed onto the beaches (Emslie 1986). Emslie 
(1986, 1987) and Snyder and Snyder (in press) suggest that the 
California condor moved back into Arizona as early as the 1700's in 
response to the introduction of large herds of cattle, horses, and 
sheep, which would explain sightings recorded in the 1800's. Emslie 
(1986, 1987) and Snyder and Snyder (in press) also suggest that the 
species was eliminated by shooting and other forms of human persecution 
before it could become reestablished throughout the region.
    Issue 8: Some expressed concern about the effect the status of 
California condors could have on the National Recreation Areas located 
within the experimental population area and how the threatened status 
of these birds might affect ongoing activities at the National 
Recreation Areas such as mining, hunting, and grazing, that are of 
special interest to surrounding communities. A similar concern was 
expressed with respect to the air tour industry in Grand Canyon 
National Park and whether future restrictions on this activity could 
occur.
    Service Response: Glen Canyon and Lake Mead National Recreation 
Areas and Grand Canyon National Park are located within the 
experimental population area; these areas are administered by the 
Secretary of the Interior, and are included in the National Park System 
(see 16 U.S.C. Sec. 1c(a)), and are subject to the 1916 Organic Act and 
other laws applicable to National Parks and Monuments.
    Condors located in National Recreation Areas and National Parks 
within the experimental population area would be treated as a 
threatened species for purposes of Section 7 consultation. Although 
enabling legislation for each recreation area authorizes activities 
unique to the area, they are still managed as units of the National 
Park System.
    The Service does not foresee that activities in the California 
condor experimental population area, including activities in the 
National Recreation Areas, would jeopardize the continued existence of 
the California condor. Additionally, the Service does not foresee that 
any ongoing or future land, water, or air will be restricted due to 
this reintroduction project. That is demonstrated by: (1) Condors 
utilize remote, canyon habitat; (2) the Service has never determined 
that an activity may cause jeopardy of the condor during the time (29 
years) that condors have been listed and fully protected in California; 
(3) the size of the California condor population is expected to 
increase in the future; (4) existing land management is compatible with 
condors; and (5) the management strategies identified in the 
experimental population rule virtually eliminate the possibility of 
impacts to condors or existing and future activities in the 
experimental population area.
    A significant portion of the California condor experimental 
population area includes remote wild canyon back country habitat that 
will provide this population with a natural refugium in which to raise 
young and will minimize the opportunity for condor conflicts with any 
ongoing or proposed activities. Also, the condor's requirement for 
remote inaccessible cliff nesting habitat, wide-ranging foraging 
patterns, and carrion prey base make them less susceptible to impacts 
from most human related activities. Consequently, condors released into 
the experimental population area should be able to co-exist with the 
current and anticipated land, water, or air uses in the area in a 
compatible manner without conflict.
    Since the California condor was listed as endangered in 1967, the 
Service has never rendered a jeopardy determination on the wild fully 
protected condor population in southern California, clearly 
demonstrating the benign nature of this species and the likelihood that 
a jeopardy opinion would ever be rendered on this experimental 
population.
    For the purposes of section 7(a)(2), the Service would consider the 
effects a proposed project would have on the entire species. Thus, in 
analyses under section 7(a)(2), the Service would evaluate the effects 
a project located on a National Recreation Area against the entire 
condor population, and not solely against the nonessential experimental 
population.
    As part of the management strategy for this population the Service 
will relocate any condor within the experimental population area, 
including the National Park System, to avoid conflicts with ongoing or 
proposed activities, or when relocation is requested by an adversely 
affected landowner (see special rule 4(ii)). This provision of the 
Service's management strategy virtually eliminates any possibility of 
conflict by allowing the Service or permitted cooperator to remove a 
condor in order to resolve potential conflict. It is evident that the 
Service and its Cooperators are committed to do all they can to resolve 
any problems in an expedient manner in order to avoid conflicts between 
condors and any current or proposed activities.
    Formal consultation with the Service may be required for activities 
such as

[[Page 54054]]

mining, hunting, and grazing in these National Recreation Areas. 
However, as explained above, based on the best available information at 
the time of this rulemaking, the Service does not foresee that any of 
these ongoing (or currently proposed) activities is likely to cause 
jeopardy to the condor.
    Issue 9: Air Tour Operators in the Grand Canyon National Park 
(Park) do not believe that condors should be introduced into northern 
Arizona unless it can be demonstrated that there is an acceptably low 
impact to air safety.
    Service Response: The Federal Aviation Administration (FAA), 
Information Management Section's National Data Base has been collecting 
voluntary reports on aircraft bird strikes nationwide since 1973 (23 
yrs). To date, no bird strikes have been reported within the Grand 
Canyon National Park (Park) boundary. An estimate of the current number 
of scenic overflights in the Park is approximately 80,000 annually, an 
average of 219 flights per day, with the number of flights per day 
increasing dramatically during the peak summer months. According to the 
FAA's data base only 11 bird strikes were recorded for the entire State 
of Arizona during this 23-year period and none resulted in a plane 
crash or injuries to pilots or passengers. Interviews with pilots 
operating in the Park indicate that bird strikes have occurred, but 
were not considered significant enough to report to the FAA.
    Dolbeer, Wright, and Cleary (1995) summarized all wildlife strike 
incidents reported to the FAA in 1994 and, of the 2,220 strike reports 
analyzed, 2,150 (97 percent) involved birds. Most bird strikes occurred 
during the approach/landing (54 percent) and take-off (34 percent) 
phases of flight (Dolbeer, Wright, and Cleary 1995). This would put 
most bird strikes in close vicinity to airports and at very low 
elevations. Condors are not expected to utilize this airspace. In the 
unlikely event that a condor would fly or perch within the operating 
space of an airport, it would be captured and moved for its safety and 
the safety of those utilizing the airport.
    California condors soaring in the Grand Canyon will be utilizing 
the updrafts and deflected winds generated by large cliff walls. Their 
flights along these walls will be to forage, to fly to and from nests, 
or down to water, all of which will take place well below the Grand 
Canyon rim. The advantage of this air lift is lost above the Grand 
Canyon rim, therefore, condors should be expected to soar at or below 
the rim when in the Grand Canyon, well below the air traffic. Some 
comparisons have been made between eagles and condors relative to the 
potential for collisions with planes. Eagles are aggressive, fast, and 
able to change directions instantaneously. Also, they are not dependent 
on winds, like condors to gain elevation. They would be more likely to 
utilize the airspace above the Grand Canyon and pose a threat to air 
traffic and yet, there has never been a substantiated aircraft eagle 
strike to date. Condors on the other hand, are dependent on winds 
generated by the topography of the Grand Canyon, their soaring flights 
are slow, deliberate, and predictable. Pilots flying at or below 200 
miles per hour (mph) should be able to see and avoid bird strikes. The 
commercial air carriers operating in the Grand Canyon fly at speeds of 
approximately 120 to 150 mph (Mike Ebersole, Grand Canyon National 
Park, pers. comm. 1996).
    Wilbur (1978) investigated over 300 California condor mortalities 
recorded between 1806 and 1976, and none involved a collision with an 
aircraft. There is no known record of an aircraft-condor strike or near 
miss (Jan Hamber, Santa Barbara Museum of Natural History, pers. comm. 
1996). The Service is confident that condors and the air tour operators 
can co-exist to the mutual benefit of one another and plans to work 
closely with air tour operators to ensure the safety of condors and air 
tours.
    Issue 10: What will the food source for condors be and is it 
adequate to support a self-sustaining population of condors?
    Service Response: California condors feed on the carcasses of dead 
animals, primarily mammals (Wilbur 1978). Koford (1953) listed 
observations of California condors feeding on 24 different mammalian 
species over the last two centuries. However, ungulates including the 
carcasses of domestic livestock are expected to be the primary sources 
of food for condors released at the Vermilion Cliffs. The Kaibab 
Plateau supports a large population of mule deer and a small population 
is resident on the Paria Plateau. Desert bighorn sheep (Ovis canadensis 
nelsoni) are found on the Paria Plateau, the west side of the Kaibab 
Plateau, and the Grand Canyon. House Rock Valley supports a small 
population of pronghorn antelope. These ungulates become available to 
condors as natural mortalities, hunter kills and road kills. Road kills 
removed from Highway 89 could be a significant source of supplemental 
food, particularly during the spring and fall deer migration, when as 
many as 20 road kills have been recorded in a single night. Mortality 
in the bison (Bison bison) herd managed by the Arizona Game and Fish 
Department located in House Rock Valley could provide a source of 
carcasses for supplemental feeding of young California condors (Vashti 
Supplee, Arizona Game and Fish Department, pers. comm. 1995). There are 
eight Bureau of Land Management and seven Forest Service livestock 
grazing allotments on the Paria Plateau, eastern Kaibab Plateau, and 
House Rock Valley. In addition to these public allotments there are 
private and State-owned inholdings in House Rock Valley and the Paria 
Plateau that are being grazed (U.S. Fish and Wildlife 1995b). Because 
of their ability to forage over large areas, it is difficult to predict 
exactly what condors will feed on and where, once they start dispersing 
from the release site.
    As a survival strategy, condors have a very efficient lifestyle. 
When they are not looking for carcasses or attending eggs or young, 
they spend most of their time perched on a roost. In flight they soar 
on thermals and updrafts which requires little energy expenditure, and 
they are often airborne all day. Despite their large size, their 
efficient flight allows them to cover large areas in search of food 
with little physical effort. Having evolved this foraging strategy, 
condors can survive in a landscape that does not appear to provide the 
density of carrion necessary to sustain such a large bird. In addition, 
condors have no known natural predators in the wild and therefore, do 
not expend energy avoiding predators.
    As the California condor population becomes established in the 
experimental area, the Service will be able to better evaluate whether 
the area's carrying capacity is less than or greater than the stated 
target of 150 condors and 15 breeding pairs.
    Issue 11: Lead poisoning could be a problem once young condors 
learn to find carrion on their own. How does the Service plan to 
address this potential threat to condors?
    Service Response: Three California condor deaths have been 
attributed to lead poisoning since 1983 (Janssen et al. 1986, Wiemeyer 
et al. 1988). Uncovered carcasses and gut piles resulting from ungulate 
or small mammal hunting were the probable sources of the lead (Pattee 
et al. 1990). Limited hunting takes place on the Paria Plateau, so the 
opportunity for condors to encounter unrecovered hunter kills or gut 
piles is relatively low. However, the Kaibab Plateau is heavily hunted 
and represents a threat to condors once they disperse from the release 
site and learn to locate food on their own. This process could take 1 
or more years. The Service in cooperation with the Department, Bureau 
of Land Management, and the Forest Service,

[[Page 54055]]

plans to utilize this window of time to address the potential threat of 
lead poisoning by initiating a hunter education program on the danger 
of lead to condors and suggesting ways that hunters can help (e.g., 
bury gut piles), and investigating potential non-toxic sources of 
ammunition that could be substituted for lead bullets on a voluntary 
basis. The Service does not intend to request modifications or 
restrictions to the current hunting regulations anywhere in the 
vicinity of the Vermilion Cliffs release site or in the experimental 
population area. Issue 5 also addresses the concern on the affects of 
this reintroduction on hunting.
    Some condor deaths from this and other sources of mortality are to 
be expected, but will presumably be more than compensated by natural 
and captive reproduction.
    Issue 12: There is a concern that the increase in recreational 
activity due to bird-watchers and other visitors coming to the 
Vermilion Cliffs area to view the condors could result in impacts to 
the local environment (e.g., off-road travel, littering, trespass).
    Service Response: Highway 89A parallels the Vermilion Cliffs for 
approximately 45km (28mi), affording excellent opportunities to view 
condors (U.S. Fish and Wildlife Service 1995b). The interpretive 
centers at the Navajo Bridge and Jacob Lake will be supplied with 
information on the natural history and status of the condors. The 
Dominguez-Escalante interpretive pullout and the House Rock Overlook 
will provide excellent panoramic views of the Vermilion Cliffs (U.S. 
Fish and Wildlife Service 1995b). With these opportunities available 
and the unpaved roads unsuitable for most passenger vehicles, it is 
anticipated that virtually all wildlife viewing will be done from the 
paved highway.
    Issue 13: There is a concern that the use of the ``nonessential 
experimental'' designation will not provide adequate protection for 
this population.
    Service Response: A Memorandum of Understanding (MOU) developed by 
the Service, Arizona Game and Fish Department, State of Utah Department 
of Natural Resources, Division of Wildlife Resources, Bureau of Land 
Management, Grand Canyon National Park, Glen Canyon National Recreation 
Area, Kaibab National Forest, The Peregrine Fund, Hualapai Tribe, The 
Navajo Nation, The Los Angeles Zoo, Zoological Society of San Diego, 
and The Phoenix Zoo is in final form. This MOU is designed to achieve 
conservation of the California condor through voluntary agreement to 
manage this population according to the recovery goals for this species 
as cited in the California Condor Recovery Plan (U.S. Fish and Wildlife 
Service 1996).
    Issue 14: It was suggested that the nonessential population area 
(area) be enlarged to include the entire State of Utah. This suggestion 
was based on the concerns that the condors could easily travel outside 
the designated area and relocating condors would be logistically 
difficult and potentially harmful to the birds.
    Service Response: Although wide ranging in their foraging patterns, 
flights by recently reintroduced condors and movement data collected in 
the 1980s by Meretsky and Synder (1992), suggest that the designated 
area will adequately contain this population for the life of the 
project. Possible stress or injury associated with relocating condors 
that have left the area will be avoided. However, inconsistent food 
supplies make it impossible to predict with certainty the future 
foraging patterns of this population. Should the designated area prove 
to be inadequate, the Service has the option to revise this rule to 
increase the designated area or change its configuration based on the 
movements of the birds.
    Issue 15: Several points concerning compliance with the National 
Environmental Policy Act (NEPA) were raised. These were: inadequate 
public notice was provided for the proposed project; that an 
environmental impact statement, not an environmental assessment, is 
necessary due to the large area of the nonessential experimental 
designation; and there is a perceived conflict of interest with the 
Peregrine Fund who was the contractor that prepared the environmental 
assessment.
    Service Response: The California condor recovery effort in northern 
Arizona/southern Utah represents the culmination of over 6 years of 
work with State, Federal, Tribal, and Municipal agencies, and the 
general public. The Service has sponsored or participated in public 
meetings and provided public comment periods on both the draft EA and 
this rulemaking in an attempt to inform all interested parties 
throughout the experimental population area of the proposed project. 
Refer to the above introductory paragraphs of the ``Summary of Comments 
and Recommendations'' section of this rule for a more detailed account 
of announcements and legal notices, meetings, and comment periods. The 
Service believes that it has fully met the requirements and intent of 
NEPA for full public involvement and the disclosure of the effects of 
the proposed action.
    An environmental impact statement is required for any given project 
when that major Federal action may significantly affect the quality of 
the human environment. The analysis of effects of the proposed action 
on existing land uses and human activities completed as part of the 
environmental assessment did not demonstrate any significant impacts to 
the natural or physical environment, or the relationship of people with 
that environment. The provisions of the nonessential experimental 
designation under section 10(j) of the Act are intended to relax 
regulations governing the protection of reintroduced populations of 
endangered species. This action does not impose land use restriction or 
otherwise affect land management activities. Throughout the entire 
California condor experimental population area, you will not be in 
violation of the Act if you unavoidably and unintentionally take 
(including killing or injuring) a California condor, provided such take 
is non-negligent and incidental to a lawful activity, such as hunting, 
driving, or recreational activities, and you report the take as soon as 
possible. Therefore, neither the ``context'' nor ``intensity'' test of 
significance of affect of the proposed action under NEPA would trigger 
the preparation of an environmental impact statement.
    NEPA specifically provides that the lead Federal agency, a project 
applicant, or a contractor may prepare the required environmental 
documentation. However, regardless of who prepares these documents, it 
does not diminish the lead agency's responsibilities to provide 
guidance and participate in the preparation of the environmental 
assessment, independently evaluate the information included in the 
documents, make its own evaluation of the environmental issues, and 
take responsibility for the scope and content of the environmental 
assessment. The Service reviewed and evaluated information in the EA 
while it was being developed and believes the conclusions drawn through 
the EA process are appropriate and fully supportable as demonstrated by 
adopting the EA, distributing the EA as a Service document and 
preparing a Finding of No Significant Impact based upon that EA.
    Issue 16: The release of a nonessential experimental population of 
California condors was opposed because it was seen by some as 
facilitating the designation of the reintroduction area as a wilderness 
area.
    Service Response: As discussed earlier in this final rule, the 
reintroduction area was selected as the

[[Page 54056]]

area for reintroduction because of its remoteness and because it 
contained habitat features used by condors. The Service's decision to 
issue this final rule to establish a nonessential experimental 
population of California condors and to reintroduce condors is not 
intended to support or to oppose the designation of any wilderness 
areas. Wilderness areas are designated via an Act of Congress after 
extensive review by the Federal land manager and other interested 
parties.
    Issue 17: The Service's definition of take is too broad. The 
Service could interpret take incidental to otherwise lawful activities 
(e.g., road building or widening, farming, construction projects such 
as housing developments) to constitute avoidable take. The terms 
``unavoidable'' and ``accidental'' were seen as being too vague, and 
impossible for a defendant to prove in court.
    Service Response: Take of an endangered or threatened species is 
prohibited by the Act, and carries criminal penalties for knowing 
violation. In this rule, take is prohibited except where such take is 
unavoidable and unintentional (including killing or injuring), provided 
such take is non-negligent and incidental to a lawful activity, such as 
hunting, driving, or recreational activities and the take is reported 
as soon as possible. Thus activities such as shooting, or intentionally 
harassing, or attempting to run over a condor with a motor vehicle are 
prohibited, and subject to criminal prosecution.
    As noted above, the rule also provides that take that is ``non-
negligent and incidental to an otherwise lawful activity'' is not 
prohibited. Thus, construction activities, road building or widening, 
and farming, if performed in the above described manner, would not 
constitute take.
    Issue 18: The Service should provide a 100 percent guarantee that 
the release of California condors will not in any way restrict the use 
of private property, including use of water rights.
    Service Response: As discussed under Issue 17 above, otherwise 
lawful activities such as farming, ranching, road building, and 
construction projects on private land should not be restricted. 
Activities such as the intentional killing of condors are prohibited 
and subject to criminal prosecution.
    Issue 19: The Service should explain whether or not any interaction 
is expected between California condors and Mexican spotted owls.
    Service Response: The Service does not expect any interaction 
between condors and Mexican spotted owls. Condors prefer relatively 
open areas, whereas owls prefer denser forests.

National Environmental Policy Act

    A final environmental assessment as defined under authority of the 
National Environmental Policy Act (NEPA), has been prepared and is 
available to the public at the Service office identified in the 
ADDRESSES section. This assessment formed the basis for the decision 
that the California condor reintroduction is not a major Federal action 
which would significantly affect the quality of the human environment 
within the meaning of section 102(2)(C) of NEPA.

Migratory Bird Treaty Act

    The final rule will not affect protection provided to the 
California condor by the Migratory Bird Treaty Act (MBTA). The take of 
all migratory birds, including the California condor, is governed by 
the MBTA. The MBTA regulates the taking of migratory birds for 
educational, scientific, and recreational purposes.

Required Determinations

    This final rule was subject to Office of Management and Budget 
review under Executive Order 12866. The rule will not have a 
significant economic effect on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Based on 
the information discussed in this rule concerning public projects and 
private activities within the experimental population area, the rule 
will not cause significant economic impacts. Also, no direct costs, 
enforcement costs, information collection, or record-keeping 
requirements are imposed on small entities by this action and the rule 
contains no record-keeping requirements, as defined in the Paperwork 
Reduction Act of 1980 (44 U.S.C. 350 et seq.). This rule does not 
require a federalism assessment under Executive Order 12612 because it 
would not have any significant federalism effects as described in the 
Order.
    The 30-day delay between publication of a final rule and its 
effective date as provided by the Administrative Procedure Act (5 
U.S.C. 553(d)(3)) has been waived. The prompt reintroduction of the 
current release candidates is desirable for the following reasons: The 
space currently utilized by this year's condor cohort will soon be 
needed to house next year's release candidates; and the longer young 
condors are held in captivity beyond the optimal release window of 6 to 
10 months, the more difficult they are to manage at release time, 
increasing the risk to the birds. Therefore, good cause exists for this 
rule to be effective immediately upon publication.

References Cited

    A complete list of all references cited herein is available upon 
request from the Arizona Field Office or Ventura Field Office. (See 
ADDRESSES section.)

Author

    The primary author of this rule is Robert Mesta, U.S. Fish and 
Wildlife Service, Ecological Services, Ventura Field Office. (See 
ADDRESSES section.)

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
Record Keeping requirements, and Transportation.

Regulation Promulgation

PART 17--[AMENDED]

    Accordingly, the Service hereby amends part 17, subchapter B of 
Chapter I, Title 50 of the Code of Federal Regulations as set forth 
below:
    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. In Section 17.11(h), the table entry ``Condor, California'' 
under BIRDS is revised to read as follows:


Sec. 17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                Vertebrate                                                                 
----------------------------------------------------                      population where                                  Critical                    
                                                       Historic range       endangered or       Status     When listed      habitat       Special rules 
          Common name              Scientific name                           threatened                                                                 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                 *                  *                  *                    *                    *                  *                  *                
             Birds                                                                                                                                      
                                                                                                                                                        
                                                                                                                                                        

[[Page 54057]]

                                                                                                                                                        
                 *                  *                  *                    *                    *                  *                  *                
Condor, California.............  Gymnogyps           U.S.A. (AZ, CA,     U.S.A. only,        E                   1,597  17.95(b)         NA             
                                  californianus.      OR, UT), Mexico     except where                                                                  
                                                      (Baja California).  listed as an                                                                  
                                                                          experimental                                                                  
                                                                          population below..                                                            
  Do...........................  ......do..........  ......do..........  U.S.A. (specific    XN                    597  NA               17.84(j)       
                                                                          portions of                                                                   
                                                                          Arizona, Nevada,                                                              
                                                                          and Utah).                                                                    
                                                                                                                                                        
                 *                  *                  *                    *                    *                  *                  *                
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Section 17.84 is amended by adding paragraph (j) to read as 
follows:


Sec. 17.84   Special rules--vertebrates.

* * * * *
    (j) California condor (Gymnogyps californianus).
    (1) The California condor (Gymnogyps californianus) population 
identified in paragraph (j)(8) of this section is a nonessential 
experimental population, and the release of such population will 
further the conservation of the species.
    (2) You must not take any California condor in the wild in the 
experimental population area except as provided by this rule:
    (i) Throughout the entire California condor experimental population 
area, you will not be in violation of the Endangered Species Act (Act) 
if you unavoidably and unintentionally take (including killing or 
injuring) a California condor, provided such take is non-negligent and 
incidental to a lawful activity, such as hunting, driving, or 
recreational activities, and you report the take as soon as possible as 
provided under paragraph 5 below.
    (3) If you have a valid permit issued by the Service under 
Sec. 17.32, you may take California condors in the wild in the 
experimental population area, pursuant to the terms of the permit.
    (4) Any employee or agent of the Fish and Wildlife Service 
(Service), Bureau of Land Management or appropriate State wildlife 
agency, who is designated for such purposes, when acting in the course 
of official duties, may take a California condor from the wild in the 
experimental population area and vicinity if such action is necessary:
    (i) For scientific purposes;
    (ii) To relocate California condors within the experimental 
population area to improve condor survival, and to address conflicts 
with ongoing or proposed activities, or with private landowners, when 
removal is necessary to protect the condor, or is requested by an 
adversely affected landowner or land manager, or other adversely 
affected party. Adverse effects and requests for condor relocation will 
be documented, reported and resolved in as an expedient manner as 
appropriate to the specific situation to protect condors and avoid 
conflicts. Prior to any efforts to relocate condors, the Service will 
obtain permission from the appropriate landowner(s);
    (iii) To relocate California condors that have moved outside the 
experimental population area, by returning the condor to the 
experimental population area or moving it to a captive breeding 
facility. All captures and relocations from outside the experimental 
population area will be coordinated with Service Cooperators, and 
conducted with the permission of the landowner(s) or appropriate land 
management agency(s).
    (iv) To aid a sick, injured, or orphaned California condor;
    (v) To salvage a dead specimen that may be useful for scientific 
study; or
    (vi) To dispose of a dead specimen.
    (5) Any taking pursuant to paragraphs (j)(2), (j)(4)(iv), 
(j)(4)(v), and (j)(4)(vi), of this section must be reported as soon as 
possible to the Field Supervisor, U.S. Fish and Wildlife Service, 
Ecological Services, Arizona Field Office, Phoenix, 2321 W. Royal Palm 
Road, Suite 103, Arizona (telephone 602/640-2720) who will determine 
the disposition of any live or dead specimens.
    (6) You must not possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any California condor or 
part thereof from the experimental population taken in violation of 
this paragraph (j) or in violation of applicable State or Tribal laws 
or regulations or the Act.
    (7) It is unlawful for you to attempt to commit, solicit another to 
commit, or cause to be committed, any offense defined in paragraphs 
(j)(2) and (j)(6) of this section.
    (8) The designated experimental population area of the California 
condor includes portions of three states--Arizona, Nevada, and Utah. 
The southern boundary is Interstate Highway 40 in Arizona from its 
junction with Highway 191 west across Arizona to Kingman; the western 
boundary starts at Kingman, goes northwest on Highway 93 to Interstate 
Highway 15, continues northeasterly on Interstate Highway 15 in Nevada 
and Utah, to Interstate Highway 70 in Utah; where the northern boundary 
starts and goes across Utah to Highway 191; where the eastern boundary 
starts and goes south through Utah until Highway 191 meets Interstate 
Highway 40 in Arizona (See map at end of this paragraph (j)).
    (i) All California condors released into the experimental 
population area, and their offspring, are to be marked and visually 
identifiable by colored and coded patagial wing markers.
    (ii) The Service has designated the experimental population area to 
accommodate the potential future movements of a wild population of 
condors. All released condors and their progeny are expected to remain 
in the experimental area due to the geographic extent of the 
designation.
    (9) The nonessential experimental population area includes the 
entire highway rights-of-way of the highways in paragraph (j)(8) of 
this section that constitute the perimeter boundary. All California 
condors found in the wild within these boundaries will comprise the 
experimental population.
    (i) The experimental population is to be monitored during the 
reintroduction project. All California condors are to be given physical 
examinations before being released.
    (ii) If there is any evidence that the condor is in poor health or 
diseased, it will not be released to the wild.
    (iii) Any condor that displays signs of illness, is injured, or 
otherwise needs special care may be captured by authorized personnel of 
the Service, Bureau of Land Management, or appropriate State wildlife 
agency or their agents, and given the appropriate care. These condors 
are to be re-released into the reintroduction area as soon as possible, 
unless physical or behavioral problems make it necessary to keep

[[Page 54058]]

them in captivity for an extended period of time, or permanently.
    (10) The status of the reintroduction project is to receive an 
informal review on an annual basis and a formal evaluation within the 
first 5 years after the initial release, and every 5 years thereafter. 
This evaluation will include, but not be limited to: a review of 
management issues; compliance with agreements; assessment of available 
carrion; dependence of older condors on supplemental food sources; post 
release behavior; causes and rates of mortality; alternative release 
sites; project costs; public acceptance; and accomplishment of recovery 
tasks prescribed in California Condor Recovery Plan. The number of 
variables that could affect this reintroduction project make it 
difficult to develop criteria for success or failure after 5 years. 
However, if after 5 years the project is experiencing a 40 percent or 
greater mortality rate or released condors are not finding food on 
their own, serious consideration will be given to terminating the 
project.
    (11) The Service does not intend to pursue a change in the 
nonessential experimental population designation to experimental 
essential, threatened, or endangered, or modify the experimental 
population area boundaries without consulting with and obtaining the 
full cooperation of affected parties located within the experimental 
population area, the reintroduction program cooperators identified in 
the memorandum of understanding (MOU) for this program, and the 
cooperators identified in the agreement for this program.
    (i) The Service does not intend to change the status of this 
nonessential population until the California condor is recovered and 
delisted in accordance with the Act or if the reintroduction is not 
successful and the rule is revoked. No designation of critical habitat 
will be made for nonessential populations (16 U.S.C. 
Sec. 1539(j)(2)(C)(ii).
    (ii) Legal actions or other circumstances may compel a change in 
this nonessential experimental population's legal status to essential, 
threatened, or endangered, or compel the Service to designate critical 
habitat for the California condors within the experimental population 
area defined in this rule. If this happens, all California condors will 
be removed from the area and this experimental population rule will be 
revoked, unless the parties to the MOU and agreement existing at that 
time agree that the birds should remain in the wild. Changes in the 
legal status and/or removal of this population of California condors 
will be made in compliance with any applicable Federal rulemaking and 
other procedures.

BILLING CODE 4310-55-P

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[GRAPHIC] [TIFF OMITTED] TR16OC96.000




[[Page 54060]]


    Dated: October 8, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-26535 Filed 10-15-96; 8:45 am]
BILLING CODE 4310-55-C